Advocacy groups sue to block Virginia rule requiring witness for absentee voting

"I Voted" stickers spread out on a table at a polling place in Richmond. (Ned Oliver/Virginia Mercury)

The American Civil Liberties Union and the League of Women Voters have filed a federal lawsuit seeking to block Virginia from enforcing a law requiring a witness for absentee voting.

The rule could create a safety issue, the suit claims, by forcing people who live alone to seek out another person in order to fill out their ballot, potentially exposing themselves to COVID-19.

“If the witness requirement stands, tens of thousands of Virginia voters will be unable to maintain social distancing recommendations and vote absentee,” Eden Heilman, legal director at the ACLU of Virginia, said in a news release. “The governor and Virginia election officials can and must adapt voting policies to preserve our democracy and keep everyone safe.”

State law requires anyone returning an absentee ballot by mail to open their sealed ballot envelope and sign their ballot in the presence of a witness.

Witnesses are also required to sign the envelope before it’s mailed back to the voter’s local election office.

The lawsuit — filed Friday in the U.S. District Court in Lynchburg — names the State Board of Elections and Elections Commissioner Chris Piper as defendants. The groups are asking the court to prohibit the state from enforcing the witness rule for the 2020 elections.

The state has not yet responded to the suit, but Democratic leaders have made clear they support steps to ensure people can vote safely in unusual circumstances.

“As Attorney General Herring and Governor Northam have said, free and fair elections are at the core of our democracy and no Virginian should have to choose between their health and exercising their right to vote,” said Charlotte Gomer, a spokeswoman for Attorney General Mark Herring. “We will discuss these issues with our client agencies and the governor’s administration to determine how best to proceed in a manner consistent with those principles.”

Elections officials are encouraging all voters to cast absentee ballots in upcoming elections, including the June 23 congressional primaries. Dozens of towns and cities are scheduled to hold municipal elections on May 5, but Gov. Ralph Northam has proposed postponing those contests until November, which would require restarting elections in which absentee voting is already underway.

The lawsuit argues the witness requirement has a disproportionate impact on the elderly, African Americans and people with disabilities because they are more likely to live alone than the general population.

“Because African American voters are disproportionately impacted by the virus, the witness requirement presents greater risk to this community’s voting rights,” said Deb Wake, president of the League of Women Voters of Virginia.

The witness rule, the suit says, “does very little” to protect election integrity in light of Virginia’s “substantial other protections against fraudulent submission of ballots.”

“Whatever interests the witness requirement may serve pales in comparison to the substantial burden on voters during the COVID-19 pandemic,” the suit says.

Lawyers from the ACLU’s national chapter and the ACLU of Virginia are involved in the effort.